This question came before the Court of Appeal in Nursing and Midwifery Council v Somerville.
Mr Somerville was appointed as a panel member and chair of what is now the Nursing and Midwifery Council’s Fitness to Practise Committee for two four-year terms, in 2012 and 2016 respectively. Each appointment was under a services agreement between Mr Sommerville and the Council.
The agreements provided that Mr Somerville would have the status of an independent contractor and that nothing in the agreement created an employer-employee relationship.
As per the agreements, the Council was under no obligation to request Mr Somerville’s services; Mr Somerville was under no obligation to provide his services if requested by the Council, and nor did he have any right to provide them. However, when Mr Somerville agreed to provide his services, he was required to “use all reasonable endeavours” to do so.
The practical reality was that the Council would ask Mr Somerville to provide his dates of availability for a six-month period and would then notify him when he was required to attend a hearing. Hearings would be allocated to Mr Somerville around a month in advance. Mr Somerville was not required to attend the hearings that were allocated to him and could withdraw from them by notifying the allocations team. He was not required to provide a reason for his withdrawal and did not incur any penalty from doing so.
Mr Somerville was paid for the hearings he attended. Until October 2017 he was paid in full for hearings cancelled by the Council, and afterwards was paid 50% of the fee if the Council failed to give 14 days’ notice of the cancellation. Mr Somerville was also paid in full for hearings that ended prematurely.
Mr Somerville brought an Employment Tribunal claim arguing that he was a worker, so was owed holiday pay.
The Employment Tribunal found that there was (1) “an overreaching contract governing the [Mr Somerville’s] period of appointment” and (2) “a series of individual contracts” which were created every time Mr Somerville accepted an offer from the Council for him to sit on a hearing, for which the Council would pay him a fee.
The Tribunal found that Mr Somerville was a worker when he performed services under the individual contracts and he agreed to provide his services personally, in accordance with the statutory definition of a worker. He was not, however, found to be an employee because there was “insufficient mutuality of obligation to give rise to an employment relationship”. Even once an individual contract had been concluded, Mr Somerville could withdraw from it without sanction.
The Council appealed the decision that Mr Somerville was a worker, and the case went to the Employment Appeal Tribunal (EAT) which dismissed the appeal.
The EAT held that “an obligation on the person to accept and perform some minimum amount of work for the other party to the contract who was obliged to offer or pay for the work”, known as an “irreducible minimum of obligation”, was not a prerequisite of worker status. In other words, the fact that Mr Somerville was not required to attend (and the Council was not obliged to offer) a minimum amount of hearings, did not prevent Mr Somerville from being a worker.
The Council appealed again and the case reached the Court of Appeal which was required to decide whether an “obligation for the putative worker to accept and perform some minimum amount of work for the putative employer” (mutuality of obligations) is a prerequisite for satisfying the definition of worker in the relevant legislation.
The Court applied the Supreme Court’s decision in Uber BV and others v Aslam and others which found that Uber drivers were providing services under individual contracts when they were working. The Court considered that Uber did not mean that “even where a person is working or providing services personally under a contract, there must be some superadded, distinct obligation on a putative employer to provide work or an individual to accept work” before they can be considered a worker. Here, it did not matter that Mr Somerville could withdraw from an agreement to attend a hearing after he accepted it; in such cases, the worker contract existed until terminated through Mr Somerville’s withdrawal.
Ultimately, Mr Somerville was found to be a worker: “[h]e was a person who entered into, and … worked under, a series of individual contracts under which he had undertaken to (and did) perform services (chairing Fitness to Practise Committees) personally. The Council was not a client or customer of a business or professional undertaking carried on by [Mr Somerville]”.
The Court dismissed the appeal.
This case demonstrates that the absence of any requirement on an individual to complete a minimum amount of work does not prevent them from being deemed a worker.
